*1 818 regulation- trade previous out rule- of for the for- required as he minutes these
making proceeding 1964-1967. Ash memoranda. staff ty-two asserts, we also and think correct- Grove The case is for remanded action in ac- agency ly, Secretary that where the opinion. cordance with this chronolog- described So ordered. containing “policy ical minutes as deter- minations,” such minutes portions subject to
thereof were disclosure under v.
Sterling Drug, Inc. Federal Trade
Commission,11 which we held that such prima
determinations are facie disclosa-
ble.12 one-paragraph de agency’s America, UNITED STATES all seventy-seven words of scription of Appellant, minutes, chronological agency v. by plain demanded just the minutes tiffs, conclusory clearly under Felipe DE DIEGO. Rosen,13 v. Vaughn Cuneo standard 74-1769. No. Pacific Architects and Sehlesinger,14and Appeals, Renegotiation Board.15 United Court Inc. v. Engineers, Circuit. District of Columbia upon by agency relied The affidavit Judge does not assert District and the 16, April minutes ever these any of employee agency been examined content; there their exact determine inspection the trial been no
has camera; min sample of the and no
utes been examined. has First,
We remand for these reasons: “policy think that
we least, determinations” at perhaps other matters includ-
ed, subject public scrutiny. are
Second, ruling before chron-
ological protected against minutes are 5, Exemption
disclosure the District
Judge examine in repre- should camera a portion
sentative minutes.16
Third, Judge require the District should description
an
to be
itemized
made of
F,2d
237,
U.S.App.D.C.
(1971).
340,
820,
450
11. 146
F.2d 698
U.S.App.D.C.
13. 157
484
cert.
denied,
1564,
94 S.Ct.
415 U.S.
policy
promoting
free flow
[T]he
(1974).
L.Ed.2d 873
agency
apply
ideas within
does not
here,,
binding
private
transmittals
U.S.App.D.C.
F.2d
14. 157
cert.
agency
interpretations
opinions
denied,
Vaughn,
should
415 U.S.
Rosen v.
encouraged.
(1974).
These
not be
are not
S.Ct.
William Wash- ington, C.,D. filed brief amicus appointed by court. curiae RIVES,* Judge, Before Senior Circuit McGOWAN, WRIGHT and Circuit Judges.
Opinion by for the court filed Senior Judge Circuit RIVES.
Dissenting opinion filed Circuit Judge McGOWAN.
RIVES, Judge: Senior Circuit 7, 1974, grand March jury On presented an indictment to the United District Court for the District of charged Felipe Columbia which De Die- co-defendants, go, five and three persons co-conspirators named as but not as de- conspiracy with the crime of fendants (1970).1 violation part 18 U.S.C. 241 As § conspiracy indictment charged conspirators, * Of the Fifth suant jure, oppress, citizen If two or more right in the free Circuit, U.S.C. privilege threaten, sitting by designation pur- § exercise or persons conspire 294(d) (1970). secured or intimidate to him enjoyment to in- any Constitution or same or They both because of his or [******] imprisoned * * * shall be ** or laws of the United *. fined having more so exercised more than than ten States, years, $10,- tients. for confidential information concerning lawfully enter the offices of Dr. Lewis J. ly Daniel Ellsberg, one of Dr. Fielding’s pa- Fielding, a psychiatrist located in Bever- lawful authority, would covertly Hills, California, with intent to search and un- ly unfortunate kind. tional methods would at best al; Prosecutor’s [*] and a preliminary review of the pretrial publicity [*] proof [*] [*] of a particular- generate investigatory [*] addi- }}! Severance, the only remaining alter- moved to dismiss the indict- native, walks squarely into the speedy ground, alia, ment on inter that un- trial obstacle. grants immunity der from the States * * * prospects had, May of Florida and California he also, can be removed hearing are 10, 1973, provided testimony *4 opinion, the Court’s dim. The immu- his conspir- discussed involvement in said testimony nized was detailed and tak- acy, which testimony admittedly came early stage en at an of the investiga- into the hands of the Government. tion. In a hearing based an on Court, proof, offer of the District on important It is to note that the 22, 1974, May granted Diego’s motion District Court’s order of (quot dismissal and dismissed the indictment as to De supra) ed at note 2 is based on the Diego prejudice.2 with June On 1974 ground “that Special the Prosecutor has appealed the United States from the or not met his establishing burden of that dismissing der the indictment as to De immunity such has not or will not taint Diego.3 We reverse and remand for fur the case.” appeal Consideration of this ther proceedings not inconsistent with may be by recognizing clarified pre as opinion. cisely as we can the extent of the bur resting den on the United States. We pretrial hearing, the in dismiss- After agree with the District holding Court’s Diego, the ing the indictment as to De judge stated: * * * shown, immunity prosecu- is the [o]nce Although prosecutors the tor has the burden of demonstrating independent evidence of Mr. De had that its use of the immunized testimo- Diego’s admitted involvement in this ny any aspect has not tainted of the matter, proceeded and have at all up case to indictment and will not do faith, good practi- times in there is no during so trial. way stage proceeding at this cal Diego protec- is entitled to establish whether or not a taint has the full privilege of his Fifth hearings which tion Amendment occurred against privi- self-incrimination. That days. last over several There is lege fully applicable is now accomplish time to this before tri- States not 2. The Court’s District order reads: May deDiego having Defendant moved to dis- impelled The reasons which the District Court indictment miss to him on the to dismiss Diego the indictment as to De were ground granted immunity by that he was orally by Judge stated day pre- Gesell on the Florida, appearing, State of and it ceding part transcript order. That of the argument, quoted oral Prosecutor appendix is opinion. in an to this establishing met his burden has not 3. 18 2, 1971, U.S.C. § as amended Jan. immunity has or will such not taint the permits appeal the United States within 30 therefore, case, fully for reasons now more days judgment from a or order of a District transcript stated the Court dismissing Court an any indictment as to one 21, 1974, it is except or more counts jeop where the double granted the motion is ORDERED ardy prohibits prosecution. clause further and the indictment is dismissed as to de- appeal authorized, This is and this court has prejudice. jurisdiction. Moore, 9 J. Federal Practice A. Gesell /s/ Gerhard supplement. 110.04 and its H A. GESELL. GERHARD Judge. District States United States, whether independent legitimate to the United
as well as derived grant Further, compelled compelled under “the testimony is sources. mony testi- one or more of the can immunity by way in no lead to the infliction Federal Government. penalties” of criminal on witness. immunity grant any prosecution event such Id. must show that it coextensive with only if it is against is valid did and will not use De Die- against self-in- scope privilege his go or its fruits immunized Murphy Waterfront “in respect.” crimination. Id. at 92 S.Ct. Harbor, Court). New York (emphasis Commission In the 1594, 12 L.Ed.2d U.S. (1964). 84 S.Ct. the trial does not
weigh the evidence he finds untainted.
exhausted when
sepa-
His function is
he
hand,
other
such a
On the
rates
tainted from
untainted.
grant
immunity cannot afford broader
continuing
prose-
The decision as to
Fifth
than the
Amendment
protection
is
prosecutor’s.
cution
infringing
both
upon
privilege without
law
great
principle that
common
very
fact
burden
right to every
man’s
public
“the
evidence,”
has
“heavy” empha
Ünited States
duty
testify
“rec
and the
necessity
granting
sizes the
an eviden
taint,
ognized
Amendment re
tiary
in the Sixth
hearing to determine
as re
accused
quirements that an
be confront quired by Murphy v. Waterfront Com
*5
him,
against
mission,
79,
ed with the witnesses
supra,
tors had evidence of Mr. De Q. they? Who were Diego’s admitted involvement” at two of the have to be A. It would time. The record further shows that I honestly I am not sure. three. insignificant. this evidence was not know, just sir. It is removed. don’t reveals that prior May record Among charged acts JA 25A. the overt possession the United States was in indictment, testimony Hunt’s implicating substantial evidence De Die- 17.5 Diego connect De with No. would go Fielding’s in the break-in of Dr. of- 18,6 testimony overt act No. Hunt’s As to fice, including testimony extensive to a of the three ac- indicate two would jury in grand the District of Columbia and the third tually searched office given by E. Howard Hunt on party conspiracy to search. directly 1973. Hunt’s implicate De Diego alleged in the con- pre-May addition spiracy, even though spe- Hunt did not evidence, prosecution argues that cifically identify Diego by name as “any conceivable taint federal one the two men actually who broke government’s Diego’s access to im- [De Dr. Fielding’s into office. Hunt did tes- might munity produced statement] tify that De Diego was one of “the three completely dissipated on June men from Miami” he had met there when, on his own initiative un- they when being were recruited by no der inducement whatsoever Barker, another conspirator, partici- government, arrived at the of- pate Fielding break-in. JA 21A. Principal fice Assistant United States He testified further: Attorney and, Earl pres- J. Silbert We were united with the three men *6 Silbert, ence of Assistant United States Miami, and I believe—that eve- Attorneys Seymour Glanzer and Donald
ning we familiarized them with the Campbell, Assistant to the nighttime area under the operating Neal, Special Prosecutor James F. admit- conditions. participation his in the Fielding ted cars, mistaken, appellant
We rented if Brief for at 20. I’m not break-in.” that, day either that or Thus the Government following day. maintains wholly apart Each man was from the evi- instructed in his untainted duties target operation prior for dence which it had accumulated 10, night. 1973, May by appel- these admissions lee on June 18 establish another “inde- JA 22A. legitimate pendent, source for the dis- pretexted We wanted a entry, a fact puted Murphy evidence.” v. Waterfront was by equipping obtained two of Commission, 18, supra, at 79 n. 378 U.S. the men from Miami delivery with 84 S.Ct. 1609. clothing men’s large green and a suit- case which actually carried the camera A trial court with a faced equipment inside it. motion to dismiss the pretrial indictment immunity granted by because of Federal JA 23A. 1, 1971, September 3, 1971, September 5. 17. or about On G. 18. On or about Hunt, BARKER, LIDDY GORDON and E. Howard Jr. FELIPE DE DIE- BERNARD L. Washington, via travelled from D. C. Chica- searched and EUGENIO R. MARTINEZ GO Angeles, go, Fielding Illinois to Los for California J. located the offices of Dr. Lewis purpose meeting Hills, Beverly purpose BERNARD L. with for the California BARKER, obtaining FELIPE DE DIEGO EUGE- confidential information con- cerning Ellsberg. R. NIO MARTINEZ. Daniel JA 8A-9A. JA 9A.
824 previously moved Diego himself had basically has four De
or State Governments
absence
even in the
determining for severance. But
for
procedures
alternative
request
party,
by either
prosecution’s evi- of such a
or not
in the interest of
power,
had
(1)
pre-
it
hold a
court
can
is tainted:
dence
sua
grant
a Rule 14 severance
justice,
can
hearing; (2) it
hold
evidentiary
trial
States,
v.
Jackson
United
sponte.
as the
See
hearing during the trial
taint
a
20,
149,
18,
offered;
412 F.2d
(3)
U.S.App.D.C.
it can 134
questioned evidence
in this case
(1969). A continuance
hearing
151
to determine
post-trial
hold
“squarely into
not have walked
taint;
(4) it
use
combination of
can
Appellee’s in-
trial obstacle.”
exercising
op-
speedy
its
alternatives.
these
7,
returned on March
here,
had been
where,
other
dictment
there are
de-
tions
was dismissed
indictment,
1974, and the indictment
named
fendants
21,
The trial of
on
as to him
a severance so
judge may order
trial
was concluded
the other defendants
taint can be limited
question
12,
trial had be-
July
appellee’s
1974. If
claiming
of the defendant
to the trial
thereafter,
time
no se-
gun a reasonable
immunity.
obstacle would have
speedy trial
rious
given
reason
first
Wingo, 407
Barker v.
presented.7
been
denying
evidentiary
an
trial court for
2182,
514,
L.Ed.2d 101
92
33
S.Ct.
U.S.
dismissing the in
hearing on taint and
Rucker,
v.
150
(1972); United States
impracti
it
dictment
that would
823,
316,
825
U.S.App.D.C.
464 F.2d
not a
cal “to establish whether or
(1972).
hearings
has occurred
days.
several
There is
would last over
A
judge
trial
has no discre
accomplish
time to
this before trial.”
tion
prosecutions
to end
unless there are
trial
The fact is that the
sched
legal grounds
for
exercise of discret
weeks,
begin
four
did
uled to
Weinstein,
v.
ion.8
United States
See
until
later. More
not start
five weeks
(2nd
1971);
714-715
Cir.
452 F.2d
over,
preliminary evidentiary pretrial
Dooling,
F.2d
United States
lasting considerably
hearing on taint
less
denied,
(2nd Cir.), cert.
395 U.S.
196-197
easily have
days
than several
could
been
(1969).
89 S.Ct.
L.Ed.2d
during
undertaken
time.
Cf. Rule
Fed.R.Crim.P. Discretion
pre-
The trial
also
that a
stated
prosecutor.
remains
prosecute
hearing
generate
“would at best
ad-
Wall.) 454,
Cases,
(7
74 U.S.
Confiscation
particular-
publicity
ditional
of a
(1869).
if the trial
L.Ed. 196
Even
ly
unfortunate kind.” But the
held,
eventually
appropriate
to re-
have been held
camera
could
*7
by
that all evidence obtained
hearing,
pretrial publicity.
move the threat
Indeed,
10, 1973
May
was
the Government
tainted,
hearing
a
pretrial
such
easily have
prosecutor
could
by the District
held in camera
Court
Diego on
go
to
to trial with De
chosen
al.,
v.
here in United
Mitchell et
States
Absent
pre-May
10 evidence alone.
74-110, apparently
Criminal No.
D.D.C.
faith,
showing of
and the District
bad
generating
additional
specifically
here
found
Court
publicity.
independent
only
not
“had
prosecutors
Diego’s admitted in
the tri
evidence of Mr. De
option open
A further
in
matter”
also that
was,
course,
this
but
al
here
severance. volvement
court
justice,”
Dooling,
United
v.
“to do
States
406
appeal
delayed
Disposition
has been
of this
(2nd Cir.),
196
F.2d
cert.
395 U.S.
denied.
repeated
by
spite
appellee,
in
the failure of
(1969);
89 S.Ct.
pretrial, only because of the time mentioned, factors the Court has APPENDIX the uncertainty but as to what evidence Portion of Proceedings may obliged the Government to offer The other matter before the Court in- during trial, or will offer particularly volves the question of Mr. De Diego’s pressures under the of cross-examina- immunity. He seeks dismissal because tion. of immunity he received under state law. Severance, only remaining alterna- I think this claim has merit and the tive, walks squarely into the speedy trial motion granted. should be The state ac- obstacle. tion carries use immunity for this Feder- prosecution, al as Kastigar teaches. circumstances, Under these the Court That state immunity granted isn’t flexibility. proceed has limited It must disputed. Once immunity shown, is it, papers on the before assisted prosecutor has the burden of demon- colloquy argument. Normally, at oral strating that its use of the immunized prosecutor protect can himself record- testimony has not tainted any aspect of ing his information about defendant up the case to indictment and will not do contemporaneously immunity before so during trial. granted op- in some official form. This portunity The FBI was not available because the and at least one member of acted, the Special apparently, on its own. The state Prosecutor’s staff admittedly prospects read that taint can be removed the immunized testimony. Al- also, though opinion, are in the Court’s prosecutors had independent evidence of dim. The immunized was de- Mr. Diego’s admitted in- early stage volvement in tailed and taken at an of the matter, this pro- investigation. ceeded at all good faith, times in there is practical no way at stage addition, Diego gave Mr. De other proceeding to establish “whether or not a *8 immunity, granted statements under la- taint has occurred without hearings which would last over several days. California, by ter the and even State by prosecution. later than that the There is not time to accomplish this be- trial; fore and a preliminary review paramount The rights of the Defend- the proof Prosecutor’s and investigatory against self-incrimination, ant according- methods would generate best addi- ly, will recognized be and the indictment tional publicity of a particularly is, accordingly, dismissed as to Mr. De unfortunate kind. Diego. Strachan, No. Criminal 74-110. States v.
9. United Gordon D.D.C. chances Prosecutor’s Special the timated McGOWAN, (dissent- Judge Circuit absence meeting prove to its burden ing): “dim,” it decided why and taint as of that, would, I on what is respect, allWith circumstances, includ- under all the record, the trial by this accord shown Special the expressed views ing the latitude than has the greater Prosecutor, should be dis- the indictment manage important crimi- majority to missed. re- before him with due proceedings nal formulating opinion his Before dispatch. He both fairness and gard for be re- taint can prospects “[t]he moved problem by reason sticky handed a dim,” . . hearing are . apparent re- Prosecutor’s Special of the 190), judge considered (Tr. the district of all the infor-' ceptivity to examination argument. and heard oral affidavits four immunity grants, available from mation support his strongly admitted facts on whether he needed without reflection conclusion. case. it to make a investigation into The federal question arose on the eve of When began pursuant to “Fielding break-in” major trial as to what to do about Judge April 1973 directive Prosecutor was less problem, of Califor- of the District Byrne Central helpful: expressed himself as than He 2, 1973, grand a federal May On nia. severance; agreed that it opposed to' heard testimo- jury Washington, D. C. the taint would be undesirable defer subject E. Howard Hunt on ny from trial, hearing until after and disclaimed testimony, De In that the break-in. alternative; purpose urge twice, only once Diego was mentioned urged problems discounted the and both Diego De Hunt stated that when holding hearing such a before involved (with by me” in Miami no indica- “run trial; only the by offering and concluded fact), and once of the result of tion that, hearing could not suggestion if following question and answer trial, so then the trial be held close of De Die- after the other mention (long more re- postponed. In the should go): atmosphere appeal, of an laxed right. All What funds [Prosecutor]: convert, Spe- the zeal of a recent all [by Krogh Liddy] via provided were that the trial Prosecutor now insists cial Miami; is men from three be reversed because it should Barker, Diego, and Mr. Mr. De Mr. or to hold an in camera failed sever Martinez? hearing before trial. fares, Certainly plane their [Hunt]: regard these circumstances of record I money to amount of and a moderate highly question relevant in the them for time lost reimburse resolving the court erred in estate business. real way it confronted the did. problem ap- They appear transcript do not 1973, at 24. 2,May Jury, of Grand Tr. majority opinion. But pended to the to- was directed thus response Hunt’s transcript solely the court’s oral that ruling given, amount of the question ward day the close of made the identity of proposed toward the court preliminary men. informing itself purpose for the held the taint the nature and extent of about attempted the FBI to inter- On pursuing with counsel problem, and of Diego subject view De on the proceed. question how best break-in, Diego refused testify but hearing, quot- transcript of that immunity (Appellant’s Brief at 5 revealing 3).1 majority, granted ed is both was then im- n. why It the court es- Florida, relevant. indicates munity by California and *9 August immunity 1972. of grant ability of acquainted He the of eral 1. was well with 2). immunity, (J.A. government grant 41 n. to the federal pursuant having previously to a fed- testified (Affidavit m that report full Wil- of May testify to on 10 in the Dade called Merrill, 46). liam H. J.A. County Attorney’s State’s office. On 9,May Diego personally Special notified Prosecutor submitted four pur- he so testifying FBI that would be affidavits in order to show that the in- grant immunity (Appel- vestigations Special suant to of of the Prosecution 3). were lant’s Brief 5 n. immunized Force tainted use of the testimony “play-by-play” contained a de- testimony. immunized One of affi- scription of how the break-in was accom- (Philip Bakes) clearly ants remembers 78), (Tr. plished and it was transmitted reading the immunized but testimony, 11, 1973, May on to the FBI with the not, states that he does to his recollec- following explanation: tion, using remember way. in any (William Merrill) One of affiants that investigator] Florida advised [The clearly reading portions remembers making copy Diego’s he was of De report containing Diego’s the FBI twenty-one page statement available statement, not, but does to his recollec- Agents to of the FBI in accordance tion, remember reading the immunized request Department with the of the testimony whether, it, or if he he read placing He was no Justice. restric- One used it. of the (Philip Hey- affiants stipulations tions on the use mann) clearly remembers that he “tried statement and he understood it would not, read all FBI reports,” to but does Department made be available to recollection, his remember he purposes. of Justice for official Diego’s read De testimony. immunized [emphasis J.A. 30 added]. Only (Charles one the affiants Breyer) day, copy The same the FBI forwarded a that, he although swore was aware that Diego’s of De immunized statement testimony admissions, contained he Attorney’s United States for office testimony. did not read the immunized Special District Columbia. The affidavits, The admissions in these not to attempt Prosecutor did not show possible mention testimony uses the trial that neither the FBI nor FBI, by the U. S. Attorney, or mem- Attorney the U. S. District of Force, Special bers of the Prosecution used the Columbia immunized support was, clearly what anything, if con- but rather investigations,2 their judge’s the district view understated that showing his efforts on centrated prospects of removing taint Special Prosecutor’s investigations “dim.” were taint. free were office brief, Special In his Prosecutor pieces evidence, Watergate Spe- On cites seven available De Diego gave before his tes- cial Prosecution Force established. immunized timony, assertedly to the show In addition obvious consultations that “the government between the federal had evi- that must occurred extensive dence, FBI, Attorney, wholly unquestionably the U. S. and the mem- devoid taint, Special directly implicating in of him in bers of the Prosecution Force date, conspiracy bring up on the he was order to latter ” . . charged (Appellant’s the FBI furnished the . Br. at June 19). description This is set page report. a 250 De Die- evidence Prosecutor margin.3 in full in shows forth It go’s immunized statement was set forth noted, Liddy 74-75, 2. Hunt and and others been As the trial had Tr. such proof undoubtedly necessary This involved. information forwarded re- Attorney Henry General Peter- Assistant move taint. April 3. on 1973. sen In the investigation course of his into Watergate break-in, Silbert, Earl J. then time Silbert at had substantial Principal Attorney Assistant United Liddy corroborating that Hunt and evidence Columbia, for the District of 25-26, learned from Angeles August been in Los on had April W. John Dean on 2-4, September there again on burglary had been a of the office working of Dr. had been also that Hunt Fielding, Ellsberg’s psychiatrist, Daniel Papers” relating “Pentagon matters *10 thought because he help would the that, even Special under the Prosecutor’s The Prosecutor description, United States. Diego De was identified as a states, however, “any con- further that possible participant only in the extreme- govern- which the ly ambiguous ceivable taint federal testimony Hunt discussed might ment’s access to this admission by that, above and the fact in refusing respond produced completely dissipated to was to the FBI without immunity, when, 18, he said that on June on his own initia- “anything he did” he did 1973, 4,May Krogh Ellsberg employed Egil in sub- and while the White 5. On Beverly At- to the United States House. Records of the Hilton Ho- mitted an affidavit torney California, Hills, Beverly example, for tel in for the District of Columbia Liddy Judge Byrne. showed that Hunt and to The affidavit had been in transmittal 15, July Krogh Angeles the Los above, on the had area dates noted stated that on report by and the FBI of an John Ehrlichman to American been instructed D. stewardess, Security project begin special Airlines 29, 1972, interviewed National to on June a causes, sources, Liddy established that Hunt and ramifi- and determine the flight Angeles had taken 32 from Los to the unauthorized disclosure cations of 4, September Hunt, Liddy, Papers”; “Pentagon New York on 1971. More- the that over, papers Young assigned obtained from had been to the Hunt’s White and David special project; they given special safe House and to the FBI that unit on June 26, report 1972 included a folder received of Dr. marked “Ells- established had a berg.” Fielding’s supply The folder contained refusal to the FBI with document disclosing Ellsberg occupied any Ellsberg; concerning had that that a information Angeles Ellsberg prepared psychological profile at the room Bel Air Motel in Los 30, 4, January by Intelligence pro- Agency from December 1970 to had the Central 1971, placed telephone information; spe- and had call to a vided no useful psychiatrist Fielding. named Dr. Lewis cial unit had determined that “information “Ellsberg” may possession Fielding Also found in hold Hunt’s in of Dr. folder report 20, July breaking key impasse”; an FBI 1971 which stated the plans to Fielding developed Dr. provide had refused then Hunt and were concerning general Ellsberg. Liddy, information with the authorization 27, 1973, April Judge Ehrlichman, Byrne, engage activity 3. On in who “to covert presiding Fielding; Ellsberg was then over the trial of the information from Dr. obtain” Anthony Krogh agreed and J. Russo in the to the “with the Central Dis- that understanding mission California, Liddy open trict of read in that Mr. Hunt and Mr. court a concerning alleged burglary statement obtain the service of certain Cubans mission”; alleged participation Hunt, trips accomplish and dy, Lid- that two Judge Byrne Angeles and others. and ordered the were taken Hunt Los government plan; investigation Liddy pursuant to undertake an and that on report early findings September trip, into the incident and its the second entry to him Fielding’s “forthwith.” an into Dr. office was ac- complished. 1,May the FBI 4. On interviewed 2,May gave 1973 Hunt extensive On Efrain Juarez-Martinez Maria Juarez- jury testimony grand to a in the District Martinez, janitors building who were concerning Fielding break-in. Columbia Fielding’s where Dr. They reported office was located. in detail entries and Hunt described the two September that on surrounding events and identified they had the front noticed door to the participated who had three Cubans building Upon they entering unlocked. en- Martinez, Eugenio Ber- actual break-in spoke Spanish countered two men who Barker, Diego and the De nard defendant either or Puerto The were Cuban Rican. (21A). they postal employees were men stated that 8,May Diego was inter- On and had delivered a suitcase Dr. Field- alleged concerning viewed the FBI his janitors gave ing’s office. The FBI de- participation Fielding break-in. scriptions of both men and identified one that, report of that interview stated photographs resembling afe Bernard rights, having been advised of his reported Barker. Juarez-Martinez fur- Mr. any- said “wanted it understood he following night, September ther on the thought thing he did he he did he because open he door and Dr. found the helping working for the CIA and Fielding’s office ransacked. file cabi- De Di- [Note: United States Government.” forcibly opened, papers had nets been however, refused, ego give floor, medicines were strewn about immunity. grant See of a absence sign there was allegedly no suitcase that had Appellant’s at 5 n. Brief 3] previous night. been delivered the Appellant’s Br. at 16-17. telephoned department. police He *11 Breyer: Mr. no whatsoev- I don’t think under inducement that is the tive and Government, I arrived solution because think in by the either er you going office ad- event are Attorney’s to be S. faced with U. and] at [the Fielding very problem; is, basic participation his that mitted was 20). I testimony Brief at this tainted (Appellant’s or not. break-in.” evidence, that curious this find it Tr. 77. (if removing far taint might go toward Special Had the strongly Prosecutor were, indeed, no tainted induce- there pressed court, the on accompa- severance any in ment), not mentioned time was nied that assurances trial would be supported on and is not trial court the sought immediately after the trial of the any by reference to affidavit appeal defendants, other we would have a dif- the of is clear that document record. It case. that, ferent But it is clear far making cannot judge trial be faulted doing that, rejected he the court’s only of the in- on the basis his decision suggestion own fact severance—a before him.4 formation I which cannot be oblivious in assessing present his claims of error. with sum, the was faced In trial court The district judge ultimately noted in govern- in a number of a situation ruling its oral that severance would “run in involved the investi- officials mental straight into the speedy problem.” trial read the immunized testimo- gation had majority The that asserts a trial would themselves prosecutors ny, several immediately held following been it, not say they that had used could not Although the main trial. possible, this is Di- implicating De only evidence and the it is more for the common Government receipt the immunized ego prior await appellate exhaustion this inconclusive. With was statement in process case main before trying court had to background, the district as the severed case. rep- In absence (1) sever De Die- whether to determine contrary, resentations the district hearing, pretrial a full taint (2) hold go, judge justified was fully in assuming during as hearings trial (3) hold taint delay likely substantial would most offered, tri- (4) post hold a evidence was that, therefore, occur and there would be (5) hearing, or dismiss indict- taint al speedy problem. ment. The trial court stated in ruling its oral difficult, is if not impossible, to “[i]t attempt fully resolve the pre- issue 1. Severance. trial, only because of the time fac- severance, majority states The tors which the Court has mentioned pretrial a full followed presumably [causing great delay in trial], the main date, hearing at later was an some taint but the uncertainty to what evidence was, It solution. appropriate may obliged Government be to offer event, an alternative district trial, or will offer during particularly brought up. Special first pressures under the of cross-examina- Prosecutor, however, objected to sever- (Tr. 189-190). tion.” hearing At the argument May the oral on ance. day before, Special Prosecutor exchange following occurred: had asserted quick easy, involving Possibly only solution The Court: “one, perhaps days,”5 (Tr. 78) out. two be- just to sever him is this dilemma representations strongly government oral These piece contrast of evidence that 4. One Diego’s partici- what Prosecutor said its had alerted did assert opposition written motion to dismiss immunized pation his federal was the indictment: August 1972. See Memorandum on dismiss, J.A. 41 n. 2. Opposition to motion to following against factors militate why point quite understand I (1) can hearing: compli- This is a full appeal. in their briefs raised his satisfaction— ited to cutor, would much cussion break-in would moved cause also asserted that immunized extent shown in a discussion the conspiracy (which all he not be the district go beyond the mere fact of forth proof offered would (which into to intended to in discussed the Hunt testimony. the abstract facts reasonably, full because immunized with the were the judge established the details of the first the district testimony). conspiracy, but prove Special Prose- I set trial. appearing question he claimed I believe— not be lim- subject testimony) it reflects this dis- at trial He to of in of they *12 jury, I of this ty, They are not experts at covert activi- ment say They couldn’t and what kind kind [86] so White Isn’t that them will to extricate thing you is what on business couldn’t have of speak. in covert don’t know House. assume. That isn’t their glass-cutters, trial? they themselves from involve- say they about what kind of what They this. had to have to do have ordered of crowbars They activities, will be known they are anything and are didn’t know lawyers saying are all that it. ignorant of, which both and going it; about. ropes what they kind bag, all to hearings Breyer. I pretrial suppose taint were Mr. that is what whether going question actually they say. They say- confront- are to are proper, him, something namely, ing in the context further. ing whether trial, with the time constraints this merely The Court. I assuming am existing and light issues then my part experience sug- but trial litigated, be taint likely to a gests that would be a bit of that. was hearing feasible: Breyer. They Mr. going are fur- Breyer. . . . Whether a Mr. They they ther. are saying didn’t crowbar, the to whether details as a any of know the details but didn’t used, was a whether window crowbar know of plan. even That broad is bearing It broken. has a on it was allegation. it; is not and it corroborates but it arguments The Court. One of the essential-— is were they make that the details you have Defend- The Court. But and, obviously, they a character such who there. ants weren’t any part of it be- didn’t know about Breyer. Mr. That is correct. a it was different kind ball cause to they going conspiracy. They
The Court. So are game, different matters, questioning thought about such somebody going out there you pertinent pictures. them is the kind whether consider take That to have; you argument going or not. are and going hap- how it you get are into Ehr- Colson, Counsel for counsel for who pened and did what. there, lichman, they as I*un- weren’t it, they trip take a Breyer. derstand didn’t Mr. I to that extent think it; Angeles. going going Their are Los counsel we are extent, to do and all asking happened put how it are have to on going to be about we Hunt, gave who the orders and who said evidence Howard what, suppose, all I the details. prepared we are to do. weeks, postpone- require conspiracy this could where evidence two
cated trial, confronting may thus this be admissible ment of against one defendant others, problem of specifically with the additional com- against defendant Court pleting prove case John Ehr- Diego. our evidence .so defendants To have sufficient lichman and Charles Colson against De was obtained prepare adequately re- for their trial would time to the immunized use Mitchell, prove No. 74-110 most of its United States Crim. quire Government (D.D.C.) . . . (2) pretrial hearing; Since full- at a case may evidentiary hearing take one to [Emphasis supplied] scale J.A. go in. (focused ing proof He didn’t The Court. tainted) mere conspiracy would re- Howard. The evidence Breyer. Mr. flect an view unrealistic of the evidence cer- concern give will going Hunt trial; that would be used at broad the Defend- made admissions tain take considerable respect to with their return upon ants time, and also would essentially involve entry. of their the details disclosure of entire trial evidence Well, explored I have The Court. strategy. and trial majority sug- length because I you at some this with gests that objected the trial court to a issues are The law am concerned. pretrial hearing problems because of clear. I am concerned fairly [87] public evidence, disclosure of practical that con- problems about implies that the trial court erroneously me. front failed to consider possibility an in ques- you have answered I think proceeding. camera An examination of *13 I had ask. tions that however, transcript, shows the trial that evidence was established Once it judge stating: “It would have to be in testimony and the immunized camera, covered of the pretrial because publicity testimony prior to that would not known problem fact you and the would be introduced, trial probably be exposing your evidence in advance.” recognized disproving taint properly 71). (Tr. point, At that the Special Pros- questioning “a vast num- would involve ecutor responded: “We understand it Special agents, staff in ber” of FBI would (Id.). have to inbe camera.” It office, and staff U. S. Prosecutor’s is indicative of the dubious nature of the complex very office—-a and Attorney’s judge assistance rendered trial time-consuming the district task. As this shortly case that that state- it, say “I dare that that would judge put ment, we the Special find Prosecutor through a hare’s chase the in- quite be saying: “We position take no 72). process.” (Tr. vestigatory point as to it should be held in (Tr. 83). camera or not.” complications to all of the In addition disproving taint in and difficulties re- event, In any it judge is clear that the testimony, Florida it gard to the Special and the Prosecutor were not in defense counsel intended to clear that agreement length as to the nec- of time questions government serious about raise essary hearing. for the taint I believe use of the receipt and con- judge’s estimate was much more re- tinuation Florida alistic, that, and as the Special Prosecu- government (which receiving) denied tor had earlier asserted in his written 59, 65), (Tr. and the use immunized opposition, taint hearing a full could not grand testimony, jury which California have pretrial postpon- been held without a public was made matter of record in itself, ing interfering trial thus (Tr. 90-91). September The up” with the “cover trial scheduled for raised the existence of questions shortly thereafter. additional sets immunized these two undoubtedly testimony would have taken hearings during Taint trial. significant time to resolve. In addi- tion, I judge believe the district Prosecutor suggested to that, in a expecting reasonable full judge district that a preliminary hearing, concerning issues taint the earli- hearing be held on whether the basic immunity er federal would be raised: conspiracy proven be could got immunity, we started on we “Once evidence, use of tainted and that there- immunity.” (Tr. chasing would be all his after any immunity questions be answer- 76). ed hearings during trial. Two of the judge judge’s faced subject district was thus with comments on that aptly and, believe, in which a taint I correctly a situation narrow hear- beyond ca- vil, may problems characterize the with that and listen to a trial come months, with the idea of approach: two take he should finding out whether very impracti- The Court: That is a going to or not. I am not been there suggestion cal every because time Mr. that. do Diego’s name is mentioned in the trial, lawyers Breyer: suggest all the will we standing Mr. Nor would up screaming, that, particularly Brig- your Mr. Honor. ham; we will jury send the back to Tr. 72. sequestered their fort, comfort or discom- was faced sum, the district be; it prove whichever and we severance, (1) possibility hold hearing-after-hearing will out of (2) opposed, appellant presence; their infringing this is which, with the if dealt taint immunity; infringing is the im- likely to be in- range of evidence entire munity; thing the other infringing troduced, delay the unacceptably would immunity. going I am not to do then, because the and which even trial that either. conspirators, was of a number of trial
Tr. 73. prob- all of the taint might not resolve trial, lems, (3) hearings during you say do about The Court: What an unduly interfere with goWe status? your cross-examination with the concentration orderly trial and seek to Defendants to trial (4) taint hear- jury, post break-in, place of ing minimize *14 ineq- conceded to be appellant upon they were after emphasis what seeking. which he disclaimed You here uitable and they got inside. when problems these backdrop to all of very intimate de- The a course, was, determination place what took in- tailed account of lack office, appellant’s proving possibility almost a Fielding’s Dr. side was, “dim.” assuredly, what was play-by-play description of of taint questioning then start You done. stand, talking about is on whoever States, v. United Kastigar The rule of of- happened inside the doctor’s what 1653, 441, 32 L.Ed.2d 92 406 U.S. S.Ct. fice; you ask a any and at moment problems (1972), creates certain 212 face, which, is deriva- on its question here, the feder- where, states and as two Diego’s immunity state- to De tive conspirator im- one government grant al stops; whole doesn’t The trial ment. force munity in order out; a jury goes The and we have it? conspirators, that testi- against the other mind, your in hearing about what was around or passed is then either mony attorney, examining whoever is the or at- finally there is an public, and made he recollection of has some joint- person tempt try the immunized this, Diego’s whether it was in De or It is true conspirators. ly with the other it wasn’t. or whether We statement impossible, but trial is not that such a type of headed toward a trial are where, here, prosecutor advises as very is not desirable. presses severance and against the court 78-79. Tr. of what only the alternative it upon prolonged have been a surely hearings. 4. Post-trial taint all energies of hearing claiming the taint just post-trial impending trial possibility of a to the parties accurately underway, dis- I believe neatly get hearing it was before colloquy be- an inherent following judge has posed of in the district judge and the the trial dismiss the indictment power tween affirm its exer- and I would prejudice; Prosecutor: in this instance. cise ... It would be The Court: authority, indi- either partially a outrageous any to force not find case I do elsewhere, that home and person jurisdiction to leave his gent in this
833 part judge prosecutor district only holds can dismiss do appropriate circumstances.6 The ma- trial court did here. The ma what jority also refers refer in jority this connection to United Confiscation Cases, Wall.) (7 454, 74 U.S. 19 Weinstein, (2nd 452 L.Ed. F.2d 704 196 But 1971), Supreme 1869. Court’s opinion Dooling, Cir. United States v. merely there (2nd Cir.), prosecutor held F.2d 192 cert. denied sub had discretion States, prosecute to refuse to nom. Persico v. United 395 U.S. objections case over of a (1969). party; 89 S.Ct. L.Ed.2d third it did not Weinstein, however, speak only way pow- ruled that a ers of the judge court. could district properly dismiss an when, Judge indictment it, Friendly put jury
“a has guilty majority found defendant apparently agrees that facially on evidence which was the district judge discretion, sufficient has this see judge, which the well majority opinion but for articulated note but states “we reasons, could not credit.” 452 find the F.2d at asserted reasons for dismissal to Dooling post-verdict 705. also inadequate.” involved Id. As earlier, said I dismissal, with judge the trial relying believe that the decision of the district principally on that had matters been con- must be only evaluated not on the rejected sidered and without leave basis of the ruling to re- oral on May new before trial by by another but district reference to what transpired at judge; although appeals the hearing May court disap- In this more proved particular dismissal, complete context, which it the district judge’s characterized “vague as based on reasons ordering the dismissal are doubts,” unsubstantial 406 F.2d adequately within the bounds of his dis- power assumed terms an inherent on cretion. encompassed notes, either specifically Dooling rules or majority As the power statutes. Nor is the power of a recognized court of a district “the inherent ” prevent injustice through circumscribed justice’ their dismissal. ‘to do *15 language. Circuit, in United 196. The Ninth F.2d at Similarly, States, in Ex (1958) (cited Parte United Heath, 306 F.2d 260 F.2d (9th 1962). said, Cir. Dooling, supra), The court approval stated: mean, course, “This does not the Dis- was, circum- under dismissal power prose- trict Court lacks to terminate a power of the stances, inherent within proper cution in a case [citations omitted].” principle established It Court. District also, Apex See Distributing United States v. justice authority to do of courts that all Co., (9th 1959). 270 F.2d Cir.